, 1887-11-23
An Important Opinion.

AsHINGToN, Nov. 22-An impor.
tant opinion by the attorney general on
the construction Of sections 5, 4 and 5 OF
the act of March 3, 1887, passed to pro,
vide for the adjustment of land grants
made by congress to aid in the construc,
ton of railroads and the forfeiture Of un,
earned lands and other purposes is made
public tonight. The opinion is given in
reply to questions asked by the secretary
of the interior. The opinion in substance
is as follows:
The first section ofthe act named di,
reefs the adjustment of grants, The sec,
ond section provides for the restoration OF
title to the United States where lands
have been enormously certified or patent.
ed to railroads.
The third section is That, if in the
adjustment of said grants it shall appear
that a homestead or presumption entry of
any bona ide settler has been enormously
cancelled or account OF any railroad grant.
or the withdrawal of public lands from
the market, each settler; upon application,
shall be reinstated in all his rights and
allowed to perfect his entry by complying
with the public lands law; provided that
he has not located another
claim or made an entry in
lieu OF the one SO enormously
cancelled, and provided, also, that he did
not voluntarily abandon said original en-
try. and provided, further, that if any of
said settlers do not renew their applIca-
ton to be reinstated within a reasonable
time to be fixed by the secretary OF the
interior, then all such unclaimed lands
shall be disposed of under the public land
laws, which priority of right have given
to bona tide purchasers of said unclaimed
lands, if any; and if there be no such
purchaser then to the bona ti1e settlers
residing therein.
The question submitted under this sec
ton was: What class Of purchasers is
referred to by the expression bona ide
purchasers Of such unclaimed lands." "
The rights of the several classes to lands
referred to in the section are successive In
the order stated therein. The first right
is the homestead or presumption of a set
tier whose entry has been ~wrongfully can
celled. If he elects to assert his right
and has not been disqualified by locating
another claim or making another entry
in lieu of hat enormously cancelled, his
right is absolute, and the successive rights
of the remaining two classes cannot at
taSh II liz ia HAhllN dDoCll6 lie Nldlll. IL
he fails to claim the land or Is disqual-
flied under the act, the second class of
persons, who are the bona tide purchasers
Of the land unclaimed by him attached,
have precedent over the third class
of bona hde purchasers here referred to,
and are those who, without knowl-
edge OF wrong or error, have purchased
from a railroad company lands which
have boon previously entered by a pre-
emption or homestead settler whose entry
has been enormously cancelled. and which
land pre- emption or homestead settler did
not elect to claim after recovery by the
proceedings prescribed by the second sec
ton of the act.
The second question was Can the de
partment after the adjustment of a grant,
issue a patent to the purchaser of such
land before said land has been reconveyed
by a road or title recovered by judicial
proceedings
In reply to this, the attorney general
says: Until the lands shall have been le-
gally determined to belong to the United
States. the right to issue patents under
the 4th section does not arise. IT the
patents should issue under the 4th section
before reconveyance or judicial recovery
under the second, and proceedings should
then be instituted to cancel the patent
issued to a railroad, in case of a decision
adverse to the government, two patents
would be out standing at the same time
for the same land.
The third question was that the fifth
section of said act provides hat where a
railroad company has sold lands not con
veyed to or for the use OF such company,
and where such lands are for any reason
excepted from the operation OF the grant
of said company, it shall be lawful for the
bona ide purchaser thereof from said
company to make payment to the United
States for said land and thereupon patents
shall issue there or to said bona fde pur
chaser"
The question submitted under this sec
ton is whether the p%roviso last quoted is
confirmed in its application to lands with
in the primary granted limits, or whether
it applies to land within the indemnity
of which a company had made Sc
lection, but which has not been approved.
The attorney general says:
The first section of the act in the use
of the word grant have necessarily
included both primary and indemnity
in al ustmcnt, as it was doubtless
intended that adjustment should be a full
and final one. The protection Offered
and the redress granted n settler by each
of the sections is fully as important in
the indemnity as in the primary limits,
and in order that the remedy may be ale-
quate TO redress the wrong, the word
grant In the hfrh section must be construed
to include as it does in the preceding sec
tons both the primary and indpmnil Y